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In February the Sydney Morning Herald reported the case of a senior executive of the Star City Casino being dismissed in the wake of complaints she made of sexual harassment against Sid Vaikunta, sacked late last year for the misconduct.

Sadly both the victimisation of the complainant and sexual harassment are still present in workplaces in Australia.

As efforts to curb both intensify with ongoing changes to whistleblower legislation and the changes to OH&S legislation there is an increasing onus of responsibility on the employer to keep the workplace safe.

Last year Australian Defence Force Academy (ADFA) cadets were involved in a widely publicised incident involving allegations of inappropriate behaviour and the use of technology, which led to a police investigation.

Consequently the Commonwealth Government engaged the Australian Human Rights Commission (the AHRC) to undertake a wide-ranging cultural review of ADFA, with a specific focus on the impact of that culture on women. During this review the AHRC considered anecdotes of wide ranging types of misconduct directed at female cadets.

The review made new distinctions in the type of behavior understood to constitute sexual harassment including a new concept of “low level” sexual harassment.

Notwithstanding this unusual environment and even though the AHRC did not actually investigateany allegations of inappropriate conduct, other workplaces can still draw on and learn from the typology used in AHRC’s cultural review and AHRC’s opinions on the seriousness of certain conduct.

As the AHRC noted, concepts of gender equality, diversity and inclusion can be controversial in any organization and are often met with skepticism or are misunderstood. (AHRC, 2011, Page 61). Often people who have been subjected to inappropriate conduct know that they have been treated poorly but have difficulties conceptualizing the conduct. This either hinders that person from making a complaint or, if they do complain, they may not be able to properly describe the conduct to those investigating it, lessening its probative value. These difficulties also highlight the need for training.

The AHRC’s report contains some helpful discussion for those responsible for conducting and managing workplace investigations involving allegations inappropriate conduct directed at women. It is also useful for those who are responsible for training staff about gender and other diversity related issues including discrimination and complaints procedures.

The Report was based on qualitative and quantitative information gathered from various sources including reviews of relevant ADFA policies and procedures, previous ADFA reports which considered gender and diversity issues, interviews with key personnel, workshops with current cadets focus groups with representatives from different stakeholder groups, written submissions and surveys into unacceptable behaviour at ADFA.

According to AHRC “unacceptable behaviours can range widely in their degree of seriousness, from inappropriate comments or a highly sexualised work environment through to serious sexual abuse or criminal sexual assault.”

AHRC reported that widespread “low level” sexual harassment was rife at ADFA. This behaviour manifested in the form of sexualized language and sexist behaviours such as “scoring a trifecta” (meaning having engaging in sexual relations with a 1st year female cadet from each of the armed services) or the use of language which commodified women (for example referring to women as “game”).

The Unacceptable Behaviour Survey conducted as part of AHRC’s review is particularly helpful as it gives some interesting insights into the AHRC’s typology used to classify inappropriate behavior directed at women. Gender and sex-related harassment questions were split into five categories:

Staring, leering or ogling at others in a way that made them feel uncomfortable

Making offensive remarks about another’s appearance, body or sexual activities

Making unwelcomed attempts to establish a romantic sexual relationship despite making efforts to discourage it

Continually asking another person out after they have said ‘no'

Sexual bribery/threat

Sexual assault. This behaviour was regarded by AHRC as being at “the more serious end of the spectrum.” The Review discovered that in the past 12 months there had been instances of:

Forcing another person into sex without their consent or against their will

Treating another person badly for refusing to have sex

Touching another person in a way that made them feel uncomfortable,

The Survey also contained questions in relation to general harassment and electronic harassment. The most commonly reported behaviour experienced was “insulting comments about physical characteristics, abilities or mannerisms”(page 34). Other statistically significant conduct against women included:

Spreading malicious rumours or public statements of a derogatory nature about other people

Treating women differently, victimizing or harassing them due to their medical status or impairment, medical condition, disability, pregnancy or potential pregnancy

Excluding women form normal conversations or workplace activities and work-related social activities.

By taking a closer look at the methodology and definitions used in this report all workplaces can assess their work environment for evidence of sexist and sexually harassing behaviour. Whilst much sexual harassment is directly attributable to the bad behavior of an individual it rarely survives in a culture where it is not tolerated and it thrives in a culture where it is exonerated.

Organisations need to reflect on the workplace culture, conduct surveys, leaving interviews and record and listen to complaints carefully to gain an understanding of the risks presented in their unique work environment.

About the author

Alison Page is legal council for Wise Workplace Investigations. She specialises in employment, industrial relations and organizational behaviour issues. Alison Page has had more than 10 years’ experience as a corporate litigation and transactions lawyer in both private and in-house practice. For further information visit

www.wiseinvestigations.com.au

COMMENTS

by Bernie Althofer20/03/2012 9:43:35 AM

Finding that you are the feature story about any form of counterproductive workplace behaviours can be confronting. It can be even more confronting if you find yourself having to respond in the negative because you thought you had all bases covered.

Court, Commission and Tribunal decisions and findings are continuing to have an impact on how organisations should be responding to counterproductive workplace behaviours. Unfortunately, it appears that some organisations may not have dedicated sufficient resources to maintain currency of knowledge of these decisions or findings. In addition, as forums are used to discuss the decisions and findings, a wealth of knowledge is being created that could provide organisations with an insight into how social commentators view these practices.

One could say that it has all been said before, but if that is the case, why is that some individuals still find it 'appropriate' to cross the line and participate in the below the line behaviours? As Courts, Commissions and Tribunal make findings against organisations, it adds to the argument for ongoing learning and development at all levels.

It also increases that argument that organisations and individuals need to conduct assessments, audits or reviews to find out what improvement opportunities exist. It seems that in this day and age, that officers and workers (from the health and safety area) should not be saying "Noboby told me". Line managers and supervisors have to be at the fore front of addressing all forms of counterproductive workplace behaviours, and if they don't have the knowledge or skills in this area, they need to be provided with the appropriate learning and development. Organisations can't keep expecting the HR Department to solve or address all the day to problems.

Officers from organisations should at least receive regular briefings about the implications of Court, Commission or Tribunal decisions and/or findings.

It may also be advantageous to test organisations systems and processes by conducting 'mock' hearings. Surely, it is better to be embarassed 'inhouse' rather than in a Court, Commission or Tribunal where invariably the findings become public and individual or organisational reputations come under more intense scrutiny.

by Franca Sala Tenna22/03/2012 5:14:26 PM

I run training regularly to educate employees across different companies about what sexual harassment is and is not. It is very common in these workshops to find that the participants just didn't know what was unlawful. this is especially true in relation to sexual harassment when humour is involved. We often think that something funny negates it being unlawful but it doesn't- and this can be the problem for some people.

by Bernie Althofer23/03/2012 11:21:33 AM

It is excellent to use external providers who may be able to 'challenge' internal systems and processes when it comes to any form of counterproductive workplace behaviours. There is little doubt that workplace culture can play a significant part in maintaining understanding about what constitutes offensive behaviour. Over the years, various Courts, Commissions and Tribunal have made decisions that may or may not have intergrated with organisational policy. It also seems that in some areas there has been a decline in what people classify as 'normal' e.g. use of obscenities. However, unless organisations have regular and ongoing training that addresses an increasingly diverse understanding about all forms of counterproductive behaviours, individuals will from time to time, either say or do something intentionally or unintentionally without realising the conduct may be offensive. It is hard to blame conduct on 'every one does it' and expect that this will be supported in an allegation. The other issue that is important i this discussion relates to the blurring of boundaries regarding what is a workplace. This has implications for those who work from home, or those who are required to meet clients and even co-workers at various functions, events, or work supported and approved gatherings. I would simply say that the rules are constantly changing so it is critically important to know what the rules are today and they will impact on you tomorrow.